# Ramayan v. State of U.P

- **Citation:** (2022) 12 ILRA 1044
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-07
- **Case number:** Jail Appeal No. 6157 of 2016
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramayan-v-state-of-u-p-47988
- **Pages:** 10

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 216- Alteration of Charge-
In this case learned trial court framed the
charges against the accused-appellant on
25.02.2011 under Sections 306 and 498-A
I.P.C. On the basis of those charges, the
prosecution led its evidence and produced
six witnesses. Statement of accusedappellant was recorded under Section 313
Cr.P.C. on 04.07.2015 and after that
learned trial court all of sudden altered
the charge and framed the charges on
29.07.2015 under Sections 304-B and 302
I.P.C.- Learned trial court did not hold
accused-appellant guilty for the offence
under Section 498-A, 306 and 304-B I.P.C.
but convicted and sentenced him for the
offence under Section 302 I.P.C. Hence, in
this
way,
the
accused-appellant
was
convicted and sentenced for the offence,
12 All. Ramayan Vs. State of U.P.
1045
for which he was not given proper
opportunity to defend himself.

Charge cannot be altered at the fag end of the
trial without giving opportunity to the accused
to defend himself.

Indian Evidence Act, 1872- Section 106-
Section 114- Indian Penal Code, 1860-
Section 302- Code of Criminal Procedure,
1973- Section 216- Provisions of Section
106 and 114 of Act, 1872 were raised by
the learned Judge below but oral and
other reliable evidence would not permit
this Court to raise such presumption as
the said presumption is rebuttable. The
fact that the deceased died in the
matrimonial home is not in dispute but
whether it was accused who authored the
act which would fulfill the ingredients of
Section 300 of IPC and whether it would
fall within its purview, such presumption
cannot take place of proof. The learned
judge with utmost respect could not have
convicted the accused under Section 302
of I.P.C. on evidence which was not laid or
rather the evidence which was led, was
never put to him under Section 313 of
Cr.P.C statement and, therefore, he was
taken off guard. The presumption under
Section 106 of Act, 1872 will not also
come to the aid of the prosecution as it
was not proved beyond reasonable doubt
that the charge which was added did not
even mention the satisfaction of the
learned Judge below and the conviction
was not from major to minor but was from
minor to major offence.

Conviction of the accused cannot be secured by
altering the Charge at the end of the trial u/s 302
IPC by resorting to the provisions of Section 106 of
the Evidence Act without any evidence being led
under the amended Charge since it is incumbent
upon the prosecution to first prove its case beyond
reasonable doubt and only thereafter the burden
will shift upon the accused.

Code of Criminal Procedure, 1973- Section
216- Alteration of Charge - The main
concern should be to see whether accused
has/had a fair trial though he may know
or not of what he was being tried for, once
the evidence is over, he would not have a
fair chance of cross-examination of the
witnesses for the new charge added which
is under Section 302 of I.P.C. and no
evidence was recorded so as to bring
home charge of Section 302 of IPC. No
doubt the stage of framing new charge
under Section 216 of the Cr.P.C. can be at
any stage, but the charge for alteration or
addition has to be so that the accused is
put to circumstance which are against
him. The basic feature for framing and/or
altering charge in criminal trial is based on
principle of fair play-accused is highly
prejudiced for not getting the fair and
proper opportunity to defend himself
against
the
altered
charge
and
the
impugned judgment and order is liable to
be set aside and is hereby quashed on this
score.

Although Charge can be altered at any stage of
the trial but the exercise cannot be held to be
legal without putting the circumstances under
the new Charge to the appellant as the rule of
fair play and providing opportunity of hearing is
fundamental to a fair and legal trial, without
which the trial would stand vitiated and
conviction of the acc

## Text

1044 INDIAN LAW REPORTS ALLAHABAD SERIES
whole case. Much depends on the facts and
circumstances of each case. These aspects
were highlighted by this Court in Vijay
Singh v. State of U.P., 1990 Cri LJ 1510."

59. One of the circumstances cited on
behalf of the appellants regarding improbability
of the prosecution case was with reference to
the site plan. Judgements have thus been relied
upon on behalf of the informant on the
evidentiary value of the site plan. However, as
we are persuaded to decide the appeal on
aspects other than site plan, therefore, the
judgements in that regard are not being referred
to. Similarly, judgements cited by the informant
on the impact of embellishments on the
investigation also need not be referred to as
those aspects do not form the basis of our
consideration in the present appeals.

60. The trial court has proceeded to
accept the prosecution case relying upon the
testimony of PW-1 and PW-2 without
subjecting it to careful scrutiny. The failure of
prosecution to explain the genesis and origin
of the occurrence has the effect of
prosecution failing to bring on record the
correct version of event. The improbability of
prosecution version regarding the genesis,
events and the manner in which the events
unfolded creates a doubt on the prosecution
case which has not been examined by the
court below in correct perspective. The
defence had clearly probablised its version
but the same has been overlooked. The
finding of the court below that prosecution
has established its case beyond reasonable
doubt, therefore, cannot be sustained. The
accused appellants are clearly entitled to
benefit of doubt in the matter.

61. For the reasons and discussions
held above, the present appeals succeed and
are allowed. The judgment and order of
conviction and sentence dated 27.11.2013
in Session Trial No.345 of 2009 is set
aside. The appellants shall be set free if
they are in jail and in the event they are on
bail, their bail bonds shall stand discharged,
subject to compliance of Section 437-A of
the Criminal Procedure Code, provided
they are not wanted in any other case.
----------
(2022) 12 ILRA 1044
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 6157 of 2016

Ramayan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
In Jail, Sri Chetan Chatterjee, A.C.

Counsel for the Respondent:
A.G.A.

Criminal Law- Code of Criminal Procedure,
1973- Section 216- Alteration of Charge-
In this case learned trial court framed the
charges against the accused-appellant on
25.02.2011 under Sections 306 and 498-A
I.P.C. On the basis of those charges, the
prosecution led its evidence and produced
six witnesses. Statement of accusedappellant was recorded under Section 313
Cr.P.C. on 04.07.2015 and after that
learned trial court all of sudden altered
the charge and framed the charges on
29.07.2015 under Sections 304-B and 302
I.P.C.- Learned trial court did not hold
accused-appellant guilty for the offence
under Section 498-A, 306 and 304-B I.P.C.
but convicted and sentenced him for the
offence under Section 302 I.P.C. Hence, in
this
way,
the
accused-appellant
was
convicted and sentenced for the offence,
12 All. Ramayan Vs. State of U.P.
1045
for which he was not given proper
opportunity to defend himself.

Charge cannot be altered at the fag end of the
trial without giving opportunity to the accused
to defend himself.

Indian Evidence Act, 1872- Section 106-
Section 114- Indian Penal Code, 1860-
Section 302- Code of Criminal Procedure,
1973- Section 216- Provisions of Section
106 and 114 of Act, 1872 were raised by
the learned Judge below but oral and
other reliable evidence would not permit
this Court to raise such presumption as
the said presumption is rebuttable. The
fact that the deceased died in the
matrimonial home is not in dispute but
whether it was accused who authored the
act which would fulfill the ingredients of
Section 300 of IPC and whether it would
fall within its purview, such presumption
cannot take place of proof. The learned
judge with utmost respect could not have
convicted the accused under Section 302
of I.P.C. on evidence which was not laid or
rather the evidence which was led, was
never put to him under Section 313 of
Cr.P.C statement and, therefore, he was
taken off guard. The presumption under
Section 106 of Act, 1872 will not also
come to the aid of the prosecution as it
was not proved beyond reasonable doubt
that the charge which was added did not
even mention the satisfaction of the
learned Judge below and the conviction
was not from major to minor but was from
minor to major offence.

Conviction of the accused cannot be secured by
altering the Charge at the end of the trial u/s 302
IPC by resorting to the provisions of Section 106 of
the Evidence Act without any evidence being led
under the amended Charge since it is incumbent
upon the prosecution to first prove its case beyond
reasonable doubt and only thereafter the burden
will shift upon the accused.

Code of Criminal Procedure, 1973- Section
216- Alteration of Charge - The main
concern should be to see whether accused
has/had a fair trial though he may know
or not of what he was being tried for, once
the evidence is over, he would not have a
fair chance of cross-examination of the
witnesses for the new charge added which
is under Section 302 of I.P.C. and no
evidence was recorded so as to bring
home charge of Section 302 of IPC. No
doubt the stage of framing new charge
under Section 216 of the Cr.P.C. can be at
any stage, but the charge for alteration or
addition has to be so that the accused is
put to circumstance which are against
him. The basic feature for framing and/or
altering charge in criminal trial is based on
principle of fair play-accused is highly
prejudiced for not getting the fair and
proper opportunity to defend himself
against
the
altered
charge
and
the
impugned judgment and order is liable to
be set aside and is hereby quashed on this
score.

Although Charge can be altered at any stage of
the trial but the exercise cannot be held to be
legal without putting the circumstances under
the new Charge to the appellant as the rule of
fair play and providing opportunity of hearing is
fundamental to a fair and legal trial, without
which the trial would stand vitiated and
conviction of the accused would be illegal.

Criminal Appeal allowed. (E-3) (Para
13, 14, 22, 26, 27, 31, 32)

Case Law/ Judgements relied upon:-

1. R. Rachaiah Vs Home Secretary, 2016 0
Supreme (SC) 383

2. Crl. Appeal No.234 of 2017 (Dharmendra
Rajbhar Vs St. of U.P.),All. (cited)

3. Nallapareddi Sridhar Reddy Vs St. of A.P.,
(2020) 12 SCC 467

4. Satish Nirankari Vs St. of Raj., (2017) 8 SCC 497

(Delivered by Hon'ble Ajai Tyagi, J.)

1. The appeal has been preferred by
the
appellant-Ramayan
against
the
judgment and order dated 29.09.2016,
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by learned Additional District and
Sessions Judge/F.T.C.-II, Kushinagar in
Session Trail No. 02 of 2011 (State of UP
vs. Ramayan), arising out of Case Crime
No. 445 of 2009, under Sections 498-A,
306 Indian Penal Code, 1860 (in short
''I.P.C.'), Police Station- Turkpatti, District
Kushinagar whereby the appellant is
convicted and sentenced for the offence
under
Section
302
I.P.C.
for
life
imprisonment with a fine of Rs.50,000/-
and in default of payment of fine, further
imprisonment for two years.

2. Brief facts of the case giving rise to
this appeal are that a written report was
submitted by informant-Anil (brother of the
deceased) at police station Turkpatti,
District Kushinagar with the averments that
marriage of his sister Sundarmati was
solemnized with the accused-Ramayan
before six years of the occurrence. Accused
used to torture his sister regularly. On
07.06.2009 at about 3:00 PM, his sister
died due to burn injuries and dead body of
the deceased is lying in the room. On the
basis of aforesaid written report, a case
crime no.445 of 2009 was registered under
Sections 306 and 498-A I.P.C. and the
investigation had taken place. During the
course of investigation, I.O. visisted the
spot and prepared the site plan. Inquest
proceedings were conducted and inquest
report was prepared. After that, the dead
body was sent for post-mortem where postmortem was conducted by the concerned
doctor
and
post-mortem
report
was
prepared.

3. Investigating Officer has recorded
the statement of witnesses under Section
161 Cr.P.C. and after completion of
investigation, I.O. has submitted the charge
sheet
against
the
accused-appellant,
Ramayan under Sections 306 and 498-A
I.P.C. The matter being exclusively triable
by the court of sessions, which was
committed to the court of sessions where
learned Trial Judge framed the charges
against
the
accused-appellant
under
Sections 306 and 498-A I.P.C. Accusedappellant denied the charges and claimed to
be tried.

4. To bring home the charges, the
prosecution examined following witnesses:

1.
Anil Kumar
P.W.-1
2.
Ramawati
P.W.-2
3.
Dasai
P.W.-3
4.
Anirudh
P.W.-4
5.
Ramcharan Kanaujiya
P.W.-5
6.
Dr.
Vijay
Kumar
Madheshiya
P.W.-6

5. In support of oral evidence, prosecution
submitted
following
documentary
evidence, which was proved by leading oral
evidence:-

1.
FIR
Ex.ka-7
2.
Written report
Ex.ka-1
3.
Post-mortem report
Ex.ka-11
4.
Panchayatnama
Ex.ka-12
5.
Charge sheet
Ex.ka-10
6.
Site plan with index
Ex.ka-6

6. After completion of prosecution
evidence, the statement of accused was
recorded under Section 313 of Criminal
Procedure Code (Cr.P.C.). After recording
the statement of accused-appellant, fresh
charge was framed by the learned trial
court
under
Section
304-B
and
in
alternative under Section 302 I.P.C. and
12 All. Ramayan Vs. State of U.P.
1047
opportunity
of
cross-examination
was
given only against the P.W.-1, Anil. No
witness in defence was produced by the
accused. After hearing the arguments of
both the sides, learned trial court convicted
the accused-appellant under Section 302
I.P.C.
and
sentenced
him
for
life
imprisonment with fine of Rs.50,000/-.

7. Heard Mr. Chetan Chatterjee,
learned Amicus Curiae for the appellant
and Mr. N.K. Srivastava, learned counsel
for the State. Record has been perused.

8. Learned counsel for the accusedappellant has submitted that deceased died
due to fire in the house but it is nowhere
proved that fire was ignited by the accusedappellant. Prosecution has further failed to
prove that at the time of occurrence,
accused-appellant was inside the house
because if it could have been the case then
accused should also have suffered burn
injuries nor he was arrested on the spot.
Initially, the case was registered under
Section 306 I.P.C. as a suicide case and
after the investigation, charge sheet was
also filed under Section 306 I.P.C.

9. It is also submitted by learned
counsel for the appellant that charge was
framed by learned trial court under
Sections 306 and 498-A I.P.C. but after
completion of entire prosecution evidence,
charge was suddenly altered under Sections
304-B and 302 I.P.C. No opportunity was
given to the accused-appellant to defend
himself against the altered charges.

10. Per contra, learned A.G.A. has
submitted that it is not disputed that
deceased died in her matrimonial home by
burning and it is also proved that she was
living with accused-appellant in the same
house since last six years, therefore,
learned trial court has rightly taken the
recourse of Section 106 of Indian Evidence
Act where the burden of proof was on the
shoulders of the accused-appellant to prove
the fact that he has not committed the
offence but he failed to do so.

11. It is further submitted by learned
A.G.A. that all the witnesses of fact have
supported the prosecution case and postmortem report also confirms that the death
of the deceased had taken place due to burn
injuries, therefore, there is no illegality or
impropriety in the impugned judgment and
order, which calls for any interference by
this Court.

12. In reply, it is submitted by learned
counsel for the appellant that deceased was
not the legally wedded wife of the accusedappellant and the learned trial court has
also given finding that she was not legally
wedded
wife,
therefore,
no
offence
regarding the dowry death is made out
against the accused-appellant and offence
under Section 302 I.P.C. is not proved due
to lack of evidence, in this regard also.

13. This is clear in this case that
learned trial court framed the charges
against
the
accused-appellant
on
25.02.2011 under Sections 306 and 498-A
I.P.C. On the basis of those charges, the
prosecution led its evidence and produced
six witnesses. Statement of accusedappellant was recorded under Section 313
Cr.P.C. on 04.07.2015 and after that learned
trial court all of sudden altered the charge
and framed the charges on 29.07.2015
under Sections 304-B and 302 I.P.C.

14. It is pertinent to note that only
P.W.-1 Anil was given opportunity to
defend himself with regard to altered
charges and no other witness namely P.W.-
1048 INDIAN LAW REPORTS ALLAHABAD SERIES
2 to P.W.-6 was given any opportunity for
cross-examination with regard to altered
charges, therefore, the accused-appellant
could not get any opportunity to defend
himself. As far as testimony of P.W.-2 to
P.W.-6 is concerned, while writing the
judgment, learned trial court did not hold
accused-appellant guilty for the offence
under Section 498-A, 306 and 304-B I.P.C.
but convicted and sentenced him for the
offence under Section 302 I.P.C. Hence, in
this
way,
the
accused-appellant
was
convicted and sentenced for the offence, for
which he was not given proper opportunity
to defend himself.

15. It appears that the learned judge
who had subsequently taken charge of the
matter had made up his mind that despite
there being no evidence which proved the
guilt against the accused-husband. The
learned judge convicted the accusedappellant on the basis of what is known as
morale conviction. This is the submission
made by learned counsel for the appellant.

16. Learned counsel for the appellant
has contended that the charge could not
have been altered in the fashion and in the
manner in which it has been done which
has acted prejudicial to the appellant herein
and learned counsel has relied on the
decision in R. Rachaiah Vs. Home
Secretary, 2016 0 Supreme (SC) 383 and
decision of this Court in Criminal Appeal
No.234 of 2017 (Dharmendra Rajbhar Vs.
State of U.P.), decided on 19.1.2021 so as
to contend that accused requires to be given
benefit of doubt as the prosecution has
failed
to
prove
the
circumstances
connecting accused to death of deceased.

17. Learned counsel for the State has
vehemently submitted that the burden of
proof has been shifted on the accused as
per Section 106 of the Evidence Act, 1872
as the death was unnatural and at the
dwelling place of husband.

18. Investigation of the case had taken
place and the charge-sheet was laid under
Section 498A, 306 of IPC but as we can
see, convicted the accused under Section
302 of IPC after altering the charge.

19. It is further submitted by learned
counsel for the appellant that once Trial
Court came to the conclusion that no
offence was committed under Section 498A
of IPC, the presumption under Section 113B of Evidence Act, 1872 could not be
raised.

20. It would be pertinent to reproduce
Section 216 of Cr.P.C. regarding alteration
of charge which reads as follows:

"216. Court may alter charge.

(1)Any Court may alter or add to any
charge at any time before judgment is
pronounced.

(2)Every such alteration or addition
shall be read and explained to the accused.

(3)If the alteration or addition to a
charge is such that proceeding immediately
with the trial is not likely, in the opinion of
the Court, to prejudice the accused in his
defence or the prosecutor in the conduct of
the case, the Court may, in its discretion,
after such alteration or addition has been
made, proceed with the trial as if the
altered or added charge had been the
original charge.

(4)If the alteration or addition is such
that proceeding immediately with the trial
is likely, in the opinion of the Court, to
prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a
new trial or adjourn the trial for such
period as may be necessary.
12 All. Ramayan Vs. State of U.P.
1049

(5)If the offence stated in the altered
or added charge is one for the prosecution
of which previous sanction is necessary, the
case shall not be proceeded with until such
sanction is obtained, unless sanction has
been already obtained for a prosecution on
the same facts as those on which the altered
or added charge is founded."

21. The question which arises before
us is that when no cogent evidence to
convict the accused despite that the learned
Judge has relied on what can be said to be
his own conjectures which are not borne
out even on interpretation of Section 106 of
the
Evidence Act,
1872
(hereinafter
referred to as 'Act, 1872') which reads as
follows:

"106.
Burden
of
proving
fact
especially within knowledge.--When any
fact is especially within the knowledge of
any person, the burden of proving that fact
is upon him. Illustrations

(a)When a person does an act with
some intention other than that which the
character and circumstances of the act
suggest, the burden of proving that
intention is upon him.

(b)A is charged with travelling on a
railway without a ticket. The burden of
proving that he had a ticket is on him."

21. Section 113B and 114 of the Act,
1872 reads as follows:

".1[113B. Presumption as to dowry
death.--When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman has been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the Court shall presume that such person
had caused the dowry death. Explanation.--
For the purposes of this section, "dowry
death" shall have the same meaning as in
section 304B, of the Indian Penal Code, (45
of 1860).]."

114. Court may presume existence of
certain facts. --The Court may presume the
existence of any fact which it thinks likely to
have happened, regard being had to the
common course of natural events, human
conduct and public and private business, in
their relation to the facts of the particular case.

22. Provisions of Section 106 and 114
of Act, 1872 were raised by the learned Judge
below but oral and other reliable evidence
would not permit this Court to raise such
presumption as the said presumption is
rebuttable. The fact that the deceased died in
the matrimonial home is not in dispute but
whether it was accused who authored the act
which would fulfill the ingredients of Section
300 of IPC and whether it would fall within
its purview, such presumption cannot take
place of proof. The learned judge with utmost
respect could not have convicted the accused
under Section 302 of I.P.C. on evidence
which was not laid or rather the evidence
which was led, was never put to him under
Section 313 of Cr.P.C statement and,
therefore, he was taken off guard. The
presumption under Section 106 of Act, 1872
will not also come to the aid of the
prosecution as it was not proved beyond
reasonable doubt that the charge which was
added did not even mention the satisfaction
of the learned Judge below and the conviction
was not from major to minor but was from
minor to major offence.

23. The submission of learned A.G.A.
is that no objection was raised at the time
of alteration of charge.

24. We may hasten to mention here
that the charge was added at the fag end of
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
the trial. The accused could not have
thought that the said alteration of charge
would be acted upon within seven days and
the trial would culminate into returning the
finding of punishment to him under Section
302 of IPC though the evidence was not
completing the right of 1872, Act.

25. In our case, we can safely hold that
the alteration of charge was bad and reliance is
placed on the decision in R. Rachaiah (Supra)
which will apply in full force.

26. In judging the question of
prejudice as of guilt, the Trial Court was
supposed to act with a broad vision and
look to the substance and not to the
technicalities. The main concern should be
to see whether accused has/had a fair trial
though he may know or not of what he was
being tried for, once the evidence is over,
he would not have a fair chance of crossexamination of the witnesses for the new
charge added which is under Section 302 of
I.P.C. and no evidence was recorded so as
to bring home charge of Section 302 of
IPC. No doubt the stage of framing new
charge under Section 216 of the Cr.P.C. can
be at any stage, but the charge for alteration
or addition has to be so that the accused is
put to circumstance which are against him.
The basic feature for framing and/or
altering charge in criminal trial is based on
principle of fair play.

27. The charges which were levelled
and in absence of any evidence, being
proved and when there was no charge of
murder, the Trial Court could not have
altered the charge at the fag end of the Trial
and raised presumption as to commission
of offence under Section 302 of IPC.

28. The object and scope of altering
the charge and the principles therein have
been summarized by the Apex Court in
Nallapareddi Sridhar Reddy Vs. State of
A.P., (2020) 12 SCC 467, which are
applicable in our case.

29. In this case, the learned Trial
Judge perused the charges and suddenly
after most of the witnesses were examined
and when it appeared that he could not base
the conviction, on the basis of presumption
under Section 106 and 114 of the Evidence
Act, 1872, he altered the charge to Section
302 of I.P.C.

30. The Apex Court in R. Rachaiah
Vs. Home Secretary, 2016 0 Supreme (SC)
383 has held that alteration of charge in
violation of mandate as per Sections 216
and 217 of Cr.P.C., and conviction recorded
under altered charges seriously causes
prejudice to the accused. Thereafter, this
impropriety of the Trial Court stands
vitiated and there could have been no
conviction under altered charge namely
under Section 302 of IPC.

31. We can safely conclude that accusedappellant was not given opportunity to
defend himself against the charge for which
he was convicted. It is sorry state of affair
that learned trial judge altered the charge
even after recording the statement of
accused-appellant
under
Section
313
Cr.P.C., therefore, the charge was fitted
according to the prosecution evidence.
There is no doubt that charge can be altered
at any stage of the trial but in such a case,
the learned trial court should give proper
and fair opportunity to the accused to
defend himself against the altered charge so
that his interest may not be prejudiced. He
must get the opportunity of fair trial.

32. In our case, accused is highly
prejudiced for not getting the fair and
12 All. Ramayan Vs. State of U.P.
1051
proper opportunity to defend himself
against the altered charge and the impugned
judgment and order is liable to be set aside
and is hereby quashed on this score.

33. Further, if we go by the evidence
on record, then also the case of prosecution
is not proved even for the offence under
Section 302 I.P.C. There is no eye witness
of this case and after alteration of charge,
opportunity of cross-examination of P.W.-1
is given. P.W.-1 has specifically stated that
he has not seen the occurrence as to how
his sister caught fire and he also did not see
who set her sister ablezed. Even before
cross-examination, he has stated in his
testimony that he was not present at the
place of occurrence and he was told by the
villagers that her sister had set her ablezed.

34. The learned trial court has
brushed aside the story of prosecution with
regard to the demand of additional dowry
and dowry death because it is held by
learned trial court that deceased was not
legally wedded wife of the accused and the
factum of additional demand of dowry was
not proved, therefore, learned trial court did
not hold guilty to the accused-appellant
under Section 304-B & 498-A I.P.C. hence,
there remains only the charge of murder
under Section 302 I.P.C. against the
accused-appellant for which there is no
evidence on record. Accused-appellant
could not be convicted on the basis of
presumption for the offence under Section
302 I.P.C.

35. The prosecution was bound to
prove the guilt of the accused under Section
302 I.P.C. beyond reasonable doubt but we
find no such evidence on record. Although,
the learned trial court has opined that on
the basis of circumstantial evidence, the
case was proved against the accusedappellant but there are no circumstances in
this case, which lead to the conclusion that
accused-appellant
had
committed
the
offence.

36. The Hon'ble Supreme Court in the
case of Satish Nirankari Vs. State of
Rajasthan,
(2017)
8
SCC
497,
in
paragraphs 29, 30 and 31 has held as
under:-

"29. It is now well established, by a
catena of judgments of this Court, that
circumstantial evidence of the following
character needs to be fully established:

(i) Circumstances should be fully
proved.

(ii)
Circumstances
should
be
conclusive in nature.

(iii) All the facts established should be
consistent only with the hypothesis of guilt.

(iv) The circumstances should, to a
moral certainty, exclude the possibility of
guilt of any person other than the accused
(seeState of U.P. v. Ravindra Prakash
Mittal [State of U.P. v. Ravindra Prakash
Mittal, (1992) 3 SCC 300 : 1992 SCC (Cri)
642]; Chandrakant Chimanlal Desai v.
State of Gujarat [Chandrakant Chimanlal
Desai v. State of Gujarat, (1992) 1 SCC
473 : 1992 SCC (Cri) 157] ). It also needs
to be emphasised that what is required is
not
the
quantitative,
but
qualitative,
reliable and probable circumstances to
complete the claim connecting the accused
with the crime. Suspicion, however grave,
cannot take place of legal proof. In the case
of circumstantial evidence, the influence of
guilt can be justified only when all the
incriminating facts and circumstances are
found to be not compatible with the
innocence of the accused or the guilt of any
other person.

30. The following tests laid down in
Padala Veera Reddy v. State of A.P.
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
[Padala Veera Reddy v. State of A.P., 1989
Supp (2) SCC 706 : 1991 SCC (Cri) 407]
also need to be kept in mind : (SCC pp.
710-11, para 10) "10. (1) the circumstances
from which an inference of guilt is sought
to be drawn, must be cogently and firmly
established;

(2) those circumstances should be of a
definite
tendency
unerringly
pointing
towards guilt of the accused;

(3)
the
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from the
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else; and (4) the
circumstantial evidence in order to sustain
conviction must be complete and incapable
of explanation of any other hypothesis than
that of the guilt of the accused and such
evidence should not only be consistent with
the guilt of the accused but should be
inconsistent with his innocence."

31. Sir Alfred Wills in his book Wills'
Circumstantial Evidence (Chapter VI) lays
down the following rules specially to be
observed in the case of circumstantial
evidence: "(1) the facts alleged as the basis
of any legal inference must be clearly
proved and beyond reasonable doubt
connected with the factum probandum;

(2) the burden of proof is always on
the party who asserts the existence of any
fact, which infers legal accountability; (3)
in all cases, whether of direct or
circumstantial evidence, the best evidence
must be adduced which the nature of the
case admits;

(4) in order to justify the inference of
guilt, the inculpatory facts must be
incompatible with the innocence of the
accused and incapable of explanation,
upon any other reasonable hypothesis than
that of his guilt; and (5) if there by any
reasonable doubt of the guilt of the
accused, he is entitled as of right to be
acquitted."

37. In our case, there is no motive
alleged by the prosecution and whatever
motive is alleged i.e. with regard to dowry
for which the accused-appellant has not
been
found
guilty.
No
other
any
circumstantial evidence is available in this
case, which could reach to the conclusion
that the offence could have been committed
by the accused-appellant himself and none
else. The chain of circumstances is not
complete. It is the duty of the court to
evaluate the chain of circumstances to
ensure that the chain of events clearly
established and complete, in such a way, as
to rule out the reasonable likelihood of
innocences of the accused-appellant.

38. On the basis of above discussion,
we have no other option but to acquit the
accused-appellant under Section 302 I.P.C.
as this is the case of no evidence. In the
aforesaid view, we are of the considered
opinion that there is neither the evidence
against the acused-appellant with regard to
offence under Section 302 I.P.C. nor he was
given fair opportunity to defend himself
against the altered charges, therefore, we
are of the considered view that learned trial
court could not have convicted the accusedappellant without any evidence and fair
opportunity to defend himself, hence,
upturn the findings of learned trial court
and the appeal is laible to be allowed.

39. Therefore, in the considered
opinion of this Court, the impugned
judgment and order dated 29.09.2016
passed by the trial court deserves to be set
aside and is accordingly, set aside.

40. Resultantly, the appeal stands
allowed.
12 All. Mohd. Amir Vs. State of U.P.
1053

41. The accused-appellant is acquitted
of the offences for which he was charged.
The accused-appellant shall be released
forthwith, if not wanted in any other case.
Fine if deposited be refunded.

42. Let a copy of this judgment along
with the trial court record be sent to the
court below and jail authorities concerned
for compliance.
----------
(2022) 12 ILRA 1053
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.11.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 6485 of 2018

Mohd. Amir ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Gaurav Kakkar, Sri Noor Muhammad, Sri
Yogesh Kumar Srivastava

Counsel for the Respondent:
G.A.

Criminal Law- Indian Penal Code, 1860-
Section 302- Section 304 Part I- The
deceased died out of septicaemial death.
We, therefore, hold that the death was a
homicidal death. It was the appellant who
was instrumental in commission of the
offence and was the author of the offence-
Considering the evidence of the witnesses
and also considering the medical evidence
including post mortem report, there is no
doubt left in our mind about the guilt of
the present appellants-The offence would
be one punishable under Section 304 partI of the IPC- It appears that the death
caused
by
the
accused
was
not
premeditated, accused had no intention to
cause death of deceased, the injuries were
though sufficient in the ordinary course of
nature to have caused death, accused had
no intention to do away with deceased,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.

Although the prosecution has established that
act of the accused resulted in the death of his
wife in the ordinary course of nature but as the
same was neither pre-meditated and nor
intentional, hence the offence will fall within the
ambit of Section 304 Part-I of the IPC instead of
Section 302 of the IPC.

Doctrine of Proportionality- Keeping in
view the facts and circumstances of the
case and also keeping in view criminal
jurisprudence in our country which is
reformative
and
corrective
and
not
retributive, this Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to
bring
them
in
the
social
stream-
'reformative theory of punishment' is to
be adopted and for that reason, it is
necessary to impose punishment keeping
in view the 'doctrine of proportionality'. It
appears
from
perusal
of
impugned
judgment
that
sentence
awarded
by
learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of
offence.
Hon'ble
Apex
Court,
as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

As the judicial trend in our Country is
reformative and corrective hence punishment
imposed must be proportionate to the offence
and should not be unduly harsh. Sentence
modified accordingly.

Criminal Appeal partly allowed. (E-3)
(Para 10, 11, 15, 19, 23, 25, 26)

Case Law/ Judgements relied upon:-